Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
January 19, 2018
CASE NO.:
17-066
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Sheila Hirsch-Kalm (File No. 17-066)
Appellant:
Michael Kalm (File No. 17-067)
Applicants:
Martin and Rachel Werner
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to recognize the change in use of an unauthorized second dwelling to become a use accessory and carry out driveway alterations
Reference No.:
N/R/2017-2018/068
Property Address/Description:
Part Lot 44, Plan 30R8775 Part 1
Municipality:
Town of Niagara-on-the-Lake
Upper Tier:
Region of Niagara
NEHO Case No.:
17-066
NEHO Case Name:
Hirsch-Kalm v. Ontario (Niagara Escarpment Commission)
Heard:
January 11, 2018 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
Sheila Hirsch-Kalm and Michael Kalm
Patrick Robson+
Martin and Rachel Werner
Thomas G. Hanrahan
Niagara Escarpment Commission
John Stuart+
Participant
Town of Niagara-on-the-Lake
Shirley Cater+
ORDER DELIVERED BY MARLENE CASHIN AND HELEN JACKSON
REASONS
Background
1Martin and Rachel Werner (“Applicants”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on May 17, 2017. The application was subsequently revised on June 6, 2017 and August 8, 2017 to remove two elements of the original application. In the revised application, the Applicants are seeking recognition of a change in use of an unauthorized second dwelling to become a use accessory to the existing single-dwelling, and to carry out driveway alterations on a 8.4 hectare (20.7 acre) lot that supports a single-dwelling (century house), three accessory structures and one agricultural storage structure. The subject property is located at Part Lot 44, RPR8775 Part 1, in the Town of Niagara-on-the-Lake, Niagara Region. The Niagara Escarpment Plan land use designations applicable to the property are Escarpment Protection Area and Escarpment Natural Area.
2On October 4, 2017, the NEC approved the Applicants’ application N/R/2017-2018/068, subject to conditions (“Conditional Approval”).
3On October 18, 2017, Sheila Hirsch-Kalm and Michael Kalm (“Appellants”) appealed the decision of the NEC to conditionally approve the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act.
4A Pre-hearing Conference (“PHC”) regarding the appeal was held by telephone conference call (“TCC”) on January 11, 2018.
5At the PHC, on consent of the parties, the Niagara Escarpment Hearing Office (“NEHO”) Hearing Panel granted participant status to the Town of Niagara-on-the-Lake (“Town”). The reasons for that decision are set out below.
Issue
6The issue is whether a request for participant status should be granted to the Town.
Relevant Rules
7The relevant rules of the Environmental Review Tribunal (“Tribunal”), Rules of Practice (“Rules”) which apply to the NEHO, are:
Role of a Participant
- A Participant in a Hearing may:
(a) be a witness at the Hearing;
(b) be questioned by the Parties;
(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and
(e) attend site visits.
- A Participant in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) participate in a mediation, unless permitted to do so by the Tribunal; and
(f) claim costs or be liable for costs.
Discussion, Analysis and Findings
8Shirley Cater, Manager of Planning for the Town, attended the PHC on January 11, 2018 and requested participant status on behalf of the Town. She stated that the subject property is located within the Town’s boundaries, and therefore, the Town has an interest in the Conditional Approval and the results of the appeals. Ms. Cater requested that the Town receive the documents to be exchanged by the parties, and be allowed to participate in any settlement discussions to be held. The parties did not object to the request for participant status by the Town, nor did they object to the Town receiving the documents to be exchanged by the parties and participating in any settlement discussions.
9The Hearing Panel finds that the Town’s interest in the appeal satisfies the considerations set out in the Tribunal’s Rules, in that its interests may be directly and substantially affected by the hearing or its result. The Town also has a genuine interest in the subject matter of the proceeding, and is likely to make a relevant contribution to the Hearing Panel’s understanding of the issues in the proceeding. As such, the Town will be recognized as a participant in the appeal, and will receive all relevant documents exchanged by the parties, and may participate in settlement discussions.
Procedural Issue
10During the PHC, it became apparent that the parties believe that an adjournment, to allow for a meeting of the parties to discuss the application and appeal, would be of benefit and may result in a settlement of the appeal, or a scoping of issues to be considered at the appeal if no settlement is reached.
11On consent of the parties, the Hearing Panel granted a request for an adjournment to allow for settlement discussions to be held.
ORDER
12The Town of Niagara-on-the-Lake is granted participant status and may participate in settlement discussions and be included in the exchange of documents of the parties.
13The PHC is adjourned, to allow for settlement discussions to take place, and will reconvene on January 30, 2018 by TCC.
Request for Presenter Status Granted
Pre-hearing Conference Adjourned
Telephone Conference Call Scheduled
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
“Helen Jackson”
HELEN JACKSON
HEARING OFFICER
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Niagara Escarpment Hearing Office
Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248